This Memorandum in Support of Jurisdiction of Appellant City of Toledo was filed for the Supreme Court case of Toledo v. Tellings (871 N.E.2d 1152 (2007)). The Supreme Court reversed the Court of Appeals decision, finding that the state and the city have a legitimate interest in protecting citizens against unsafe conditions caused by pit bulls.

*ii TABLE OF CONTENTS

TABLE OF AUTHORITIES ... iii

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION ... 1

STATEMENT OF THE CASE AND FACTS ... 5

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ... 6

Proposition of Law No. I: The state legislature pursuant to R.C. 955.11 (A)(4)(a)(iii) has clearly defined that all dogs belonging to the breed commonly known as pit bulls are vicious and does not deny the owners substantive due process ... 6

Proposition of Law No. II: R.C. Section 955.1 1(A)(4)(a)(iii), R.C. 955.22 and Toledo Municipal Ordinance 505.14 bear a real and substantial relation to the health, safety and morals of the public and is not unreasonable or arbitrary ... 8

Proposition of Law No. III: Dogs commonly known as pit bulls possess unique and readily identifiable physical and behavioral traits which are capable of recognition both by owners of ordinary intelligence and by enforcement personnel ... 12

*1 EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION

On March 3, 2006, the Sixth District Court of Appeals decided that Revised Code, Section 955.22, Revised Code, Section 955.1 1(A)(4)(a)(iii) and Toledo Municipal Code, Section 505.14(a) were unconstitutional. In a 2 to 1 decision, the Court of Appeals shot down the efforts of both the state and local legislative authorities to address concerns caused by vicious dogs and deprived the citizens of effective laws to protect them from an ever present menace.

As a result of this decision in the Sixth District Court of Appeals, the citizens of northwest Ohio are no longer adequately protected vicious dogs. The citizens of Toledo, Ohio, in particular, are unprotected from the menace of irresponsible dog owners and their pit bulls. Pit bull owners in the City of Toledo and in northwest Ohio are no longer required by law to take common sense steps to prevent their pets from causing harm. Accordingly, the first issue presented in this case that makes it one of great public and general interest is the issue of health and public safety.

The second issue in this case involves the fundamental precept in our form of government - separation of powers. In misapplying the rational basis test, the Court below improperly substituted its judgment over that of state and local legislatures.

Due to its urban setting, Toledo has long had a problem with pit bulls which seems to be greater than that suffered in other suburban and rural communities. In particular, Toledo has found that, despite the presence of some responsible pet owners, many pit bulls are owned by drug dealers and persons involved in an nefarious “sport” of dog fighting. Many other pit bull dogs are kept by owners that make irresponsible choices in raising the animals. In an effort to combat the special dangers presented by aggressive pit bulls, City Council passed ordinances *2 designed to complement and expand upon already existing State statutes. City ordinances restricted pit bull owners to owning only one (1) pit bull within the City limits. Controls were placed on pit bull owners taking their pets on public streets and parks without muzzles and the law required confining pit bulls in a manner that would prevent the dogs from roaming unfettered throughout the City's neighborhood. Both City Council and the State Legislature were mindful that pit bulls, with their known aggressive nature and fighting propensity, poses special danger to citizens, children, and other pets. While the City never disputed that some pit bull owners would be unfairly restricted due to the irresponsibility of other owners, City Council found such restrictions necessary to preserve the safety and health of the citizens of Toledo. Undoubtedly, similar motives existed at the state legislative level when restricting statues were passed by the General Assembly in 1987.

Additionally, Toledo's vicious dog ordinance found at Section 505.14 of the Toledo Municipal Code and sections of the state vicious dog statutes were helpful to protect the life and limb of Toledo police officers and firefighters who, in their already dangerous jobs, come face to face with pit bulls during drug raids, execution of search warrants and other emergency calls. Now, the protections of the statues and ordinances passed at the local and state level have been deprived to these safety forces. As a result of the recent Sixth District Opinion, there are virtually no restrictions on pit bull ownership in Toledo and surrounding communities to protect the public and the safety forces from this ever-present menace.

This case involves substantial constitutional questions. Purportedly, the Court of Appeals applied the rational basis test to determine that certain provisions of Revised Code Section 955.11, Revised Code Section 955.22 and Toledo Municipal Code Section 505.14 were *3 unconstitutional.[FN1] The Court correctly recognized that the correct evaluation of the state and local laws required merely rational basis. Unfortunately, the Court misapplied the test in such a manner that the result amounts simply to the usurpation of legislative authority by the Court. This Court has long recognized that statutes and ordinances enjoy a presumption of constitutionality.[FN2] in Ohio, courts should be reluctant to find a legislative enactment unconstitutional.[FN3]

FN1. The lower court correctly noted that dog ownership is not a fundamental right that would necessitate a higher level of scrutiny.

FN2. Hilton v. Toledo (1980), 62 Ohio St.2d 394. Further, a party challenging constitutionality of an ordinance or statute must show that the law is unconstitutional through proof beyond a reasonable doubt. Id.

In misapplying the rational basis test, the lower court substituted its own judgment for that of the state and local legislatures based upon testimony at a municipal court hearing. Undoubtedly, the testimony which was disputed, was insufficient to overcome the strong presumption of constitutionality beyond a reasonable doubt. More importantly, however, under the rational basis test, legislation must have had no purposes rationally related to its goal. This Court has correctly held on previous occasions that a legislature does not violate equal protection clause merely because it makes classifications that are, imperfect. Rather, laws with some reasonable basis should be upheld even if the law results in some inequality.[FN4]

If the Court of Appeals decision is left to stand, it would weaken the constitutional scheme of separation of powers. Virtually every criminal law would be subject to arbitrary reversal if a pressure group simply brings in expert witnesses to question the wisdom of the law at a municipal court level. If the municipal court would not overthrow the law, perhaps the Court of Appeals following the precedent of this case, would. Imagine, switchblades would be legalized because many experts would be able to testify that they are no more dangerous than *4 another knife. Sawed-off shotguns would once again saturate our streets because many experts would suggest they are no more dangerous than a common 22 caliber rifle. One needs no overactive imagination to consider many other examples of criminal statutes that could be questioned by experts and repealed not by the legislature, but activist courts.

If allowed to stand, this decision would also create a precedent in northwest Ohio that would substantially alter the rational basis test as it has been traditionally applied. Statutes and ordinances have to withstand the constant battery of countless experts who would argue that the legislature could have done something different or better or, simply, that times have changed. Rather than allowing the legislative process to amend or repeal law, precedent would be established that would allow courts to simply take over based upon their feelings on a particular issue.

On many occasions, this Court and others have struck down legislative and executive actions because the legislature or executive branch of government improperly usurped judicial authority.[FN5] Just as this Court and other courts have protected the independence of the judiciary from legislative encroachment so too should this Court protect the legislative branch from judicial encroachment. For that reason, jurisdiction should be accepted in this case.

*5 For instance, the First District Court of Appeals in Singer v. Cincinnati applied the rational basis test to a similar ordinance and found the ordinance to be constitutional.[FN8] In State v. Robinson, the Court of Appeals similarly found vicious a dog ordinance passed constitutional muster.[FN9] The United States District Court for Southern Ohio upheld a pit bull ban and found a village ordinance banning the dogs to be rationally related to a legitimate government interest.[FN10]

Accordingly, this matter comes to this Court with several significant issues of public or great general interest and involves substantial constitutional questions.

STATEMENT OF THE CASE & FACTS

Paul Tellings, a resident of Toledo, owned two to three pit bull dogs and kept them at his residence within the jurisdiction of the City of Toledo. A health inspector, who was checking for lead paint, reported the dogs to the Lucas County Dog Warden. Mr. Tellings was charged by the City of Toledo with two violations of Toledo Municipal Code Section 505.14(a).[FN11] The ordinance limits ownership to only one adult pit bull per household. Additionally, Tellings was charged with violation of Ohio Revised Code Section 955.22 for failure to provide proof of liability insurance for the animals. Tellings entered a plea of not guilty and set the matter for trial. Subsequently, Tellings submitted a motion to dismiss based upon a constitutional challenge to the City ordinance. After a lengthy hearing on the motion, the trial court properly overruled Tellings' challenge to the constitutionality of the ordinance and Tellings entered a plea *6 of no contest to all charges. Tellings was found guilty and appealed to the Sixth District Court of Appeals.

FN11. Toledo Municipal Code Section 505.14(a) states as follows: “No person or organization or corporation shall own, keep, harbor or provide sustenance for more than one vicious dog, as defined by revised code section 955.11, or a dog commonly known as a pit bull or pit bull mixed breed dog, regardless of age, in the City of Toledo, with the exception of puppies commonly known as pit bull or pit bull mixed breed for which the owner has filed an ownership acknowledgement form in person with the dog warden of Lucas County, prior to reaching seven days of age. The ownership of these puppies must be transferred according to revised code section 955.11 before they are three (3) months of age. Additionally, this section requires that all vicious dogs, known as pit bull or pit bull mixed breed dogs are required, when off the owner's premises, to be securely confined as described in revised code section 955.22 and muzzled.”

On appeal, Tellings raised four assignments of error all attacking the constitutionality of Revised Code Section 955.1 1(A)(4)(a)(iii), Revised Code Section 955.22 and Toledo Municipal Code Section 505.14. In a 2-1 decision, the Court of Appeals found that Revised Code Section 955.22, Revised Code Section 955.11 and Toledo Municipal Code Section 505.14 were unconstitutional as they purportedly denied Tellings' due process rights. Further, the majority found that Revised Code Section 955.11 and Toledo Municipal Code Section 505.14 were unconstitutional as there was no rational basis to a legitimate government interest and that Revised Code Section 955.11 and Toledo Municipal Code Section 505.14 were unconstitutional for vagueness.

This matter is now before this Court on the City's Memorandum in Support of Jurisdiction.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. 1:

The state legislature pursuant to R.C. 955.11(A)(4)(a)(iii) has clearly defined that all dogs belonging to the breed commonly known as pit bulls are vicious and does not deny the owners substantive due process.

The appeals court cites State v. Cowen, 103 Ohio St. 3d 144, 2004-Ohio-4777, as its authority to find R.C. 955.22 and T.M.C. 505.14 unconstitutional. The appeals court reliance on Cowen is misplaced. This Court in Cowen based its decision on a dog warden's unilateral decision to classify the appellee's dog as vicious based upon the unsupported word of complaining parties. The Sixth District, however, improperly extended this Court's holding in Cowan beyond its intended scope.

*7 In Cowan, this court found certain provisions of R.C. 955.22 and R.C. 955.11 constituted unconstitutional violation of procedural due process. Specifically, this court found that 955.11(A)(4)(a)(i)-(ii) placed too much unfettered discretion with the State to make a subjective determination of what constituted a vicious dog.[FN12] In Cowan, this court found that there was a lack of due process because a person had no opportunity to challenge the authorities' determination without facing criminal charges. However, unlike here, the Cowan court did not address a scenario involving “pit bulls”. Pit bulls, unlike the dogs in Cowan, are specifically defined by statute as being vicious dogs. (R.C. 955.11(A)(4)(a)(iii). Where pit bulls are involved, the law enforcement authority does not have unchecked discretion to subjectively declare a dog vicious. Pit bulls are defined as vicious by the Code. Accordingly, here, there was no due process problem similar to that found in Cowan.

FN12. The Court of Appeals noted at ¶47 of its Decision that this Court “did not exclude any of the definitions [of R.C. 955.11(A)(4)(a)].” This expansive reading of Cowan, however, would defeat the reasoning of this Court. The appellant acknowledges that S.Ct.R.Rep.Op. 1(B) provides that the “law stated in a Supreme Court Opinion is contained within its syllabus...” However, “the syllabus of a Supreme Court Opinion states the controlling point or points of law decided in and necessarily arising from the facts of the specific case before the court for adjudication”. Worrell v. Court of Common Pleas, 69 Ohio St.3d 491, 495, 1994-Ohio-128 (internal cite omitted) [emphasis added]. The facts of the case in Cowan do not invite the broad reading of the syllabus made here by the Court of Appeals.

R.C. 955.11 (A)(4)(a)(iii) defines a vicious dog as: “Belongs to a breed that is commonly known as a pit bull dog. The ownership, keeping or harboring of such a breed of dog shall be prima-facie evidence of the ownership, keeping, or harboring of a vicious dog.”

The state legislature has provided in plain language a definition to give notice to owners of pit bulls. Many Ohio courts, including this one, have ruled that the language of 955.11 (A)(4)(a)(iii) or similar language is not vague.[FN13] Pit bulls have been declared vicious by statute and, therefore, owners of this breed are on notice that they are affected by the law.

*8 Succinctly stated, the definition puts pit bull owners on notice that pit bull owners must follow the restrictions enumerated in R.C. 955.22. This is not a classification based upon dog the warden's unilateral decision based upon the unsupported word of complaining parties. The holding in Cowan was inapplicable to this case.

The Court of Appeals decision complains that the pit bull owner must await being criminally charged to rebut the prima facie evidence that his or her pit bull is vicious or even dispute the fact that their dog is a pit bull. It is the appellants position that, that is what trials are for, a factual determination of the guilt or innocence of the defendant. In this matter, if it had proceeded to trial, the defendant would have had the opportunity to present his evidence to a judge or jury.

It is significant that the defendant in this case never disputed the dog warden's classification of his dogs as pit bulls. If he would have raised this matter for appeal there is question whether he would even have standing, but the court of appeals seemingly failed to consider this fact.

Toledo Municipal Code Section 505.14 was properly passed by the City Council after lengthy legislative process and signed into law as provided by the City Charter, giving notice to all pit bull owners in the City of Toledo.

Proposition of Law II:

R.C. Section 955.11 (A)(4)(a)(iii), R.C. 955.22 and Toledo Municipal Ordinance 505.14 bear a real and substantial relation to the health, safety and morals of the public and is not unreasonable or arbitrary.

The due process clause of the Fifth and Fourteenth Amendments to the U.S. Constitution require that the stature in question “bear a rational relation to a legitimate legislature goal or purpose”, Exxon Corp. v. Governor of Maryland, (1978) 437 U.S. 117, cited in *9 Garcia v. Village of Tijeras (N.M. App. 1988), 108 N.M. 116, 767 P.2d 355 unless the statute implicates a “fundamental right”. Dog ownership is not a “fundamental right”. The courts have had no trouble determining that bans on pit bulls are rationally related to the legitimate legislative goal of public safety. See Garcia, supra at 121. Garcia also held that even an absolute ban on the ownership of certain types of dogs would be permissible:

In Sentell v. New Orleans & Carrllton Railroad (1896), 166 U.S. 698 the U.S. Supreme Court, in considering a state's power to regulate dogs, found that even if it were assumed that dogs are property in the fullest sense of the word, they would still be subject to the police power of the state and might be destroyed or otherwise dealt with as in the judgment of the legislature is necessary for the protection of its citizens. Id. at 702.

The appeals court opinion correctly noted the legislature's police power to regulate dogs, and the strong presumption of constitutionality that a statute deserve. The appeals court fails to acknowledge that the party alleging that a statute is unconstitutional must prove this assertion beyond a reasonable doubt in order to prevail See Jackman v. Court of Common Pleas (1967), 9 Ohio St.2d 159; Hilton v. Toledo (1980), 62 Ohio St.2d 394; and State v. Anderson (1991), 57 Ohio St.3d 168.

Unfortunately, the Court of Appeals committed error in misapplying the rational basis test in this case and in striking down legitimate exercises of police power in the forms of Revised Code Section 955.11, 955.22, and Toledo Municipal Code Section 505.14. In so doing, the Court of Appeals inadvertently but irreparably put the citizens of Toledo at risk by depriving them of the protections contemplated by state and local legislators.

This Court has long been reluctant to undermine enactments of the State Legislature with findings of unconstitutionality. In *10 State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, the Court recognized that legislative enactments are presumptively valid, that all reasonable presumptions will lean toward validity of a statute and any doubt as to constitutionality, would be resolved in favor of validity. The Defenbacher court long ago noted that the importance of separation of powers requires the court to be deferent to the findings of legislatures as to exactly what constitutes public good or public purpose. Id. A court should be cautious, not substitute its judgment for that of the legislature.

In this State, the presumption of constitutionality is so strong it can only be overcome with proof beyond a reasonable doubt. See, State v. Saurman (1980), 64 Ohio St.2d 137.

This Court has long recognized that where a law does not affect the exercise of a fundamental right, it should be reviewed under the rational basis test. See for instance, Park Corporation v. City of Brook Park, 102 Ohio St.3d 166, 2004-Ohio-2237. The laws will be deemed valid on due process grounds providing they bear a real substantial relation to public health, safety, morals for the general welfare of the public and that they are not unreasonable or arbitrary. Mayer v. Bristow (2000), 91 Ohio St.3d 3.

This Court has held, consistently, that a legislature does not violate the Constitution simply because a legislative enactment results in some inequality. See, McCrone v. Bank One Corporation, 107 Ohio St.3d 272, 2005-Ohio-6505. Under the rational basis test, law will be upheld as long as it is not arbitrary or unreasonable. Id.

In this case, the Court of Appeals correctly determined that the rational basis test was applicable. Unfortunately, the Court of Appeals misapplied that test. The Court, in its Opinion and Judgment Entry, recognized that there were disputes in the expert testimony presented by both sides. The Court of Appeals then decided to believe the experts proffered by the Defendant rather than the State. In terms of day-to-day human judgment, the Court of Appeals succumbed *11 simply to human error. It decided a case in accordance with its belief of what legislative policy should be rather than deferring policy decision to the legislature and democratic process. Unfortunately, the City and its population have been damaged by the Court of Appeals' mistake. Rather than applying the rational basis test, which would have not weighed the evidence presented at a Municipal Court hearing in an effort to determine whether or not a legislative enactment should be repealed. Rather, the Court should have limited its inquiry to whether or not Tellings had shown beyond a reasonable doubt that the law was not in furtherance of a legitimate governmental goal and that it was arbitrary and unreasonable. The Court did something else entirely. The Court simply substituted its own judgment for that of the legislature and hence misapplied the rational basis test and improperly usurped the legislative authority.

This Court has recognized that it is a proper province of the judicial branch to interpret State and Federal Constitutions. The legislatures of the State rather than the courts, however, have the final say on public policy providing that say does not violate specific provisions of the State or Federal Constitution. Beagle v. Walden, 78 Ohio St.3d 59, 1997-Ohio-234. In this case, two judges out of three in the Court of Appeals substituted their judgment of public policy for that of the state and municipal legislative bodies. Unintentionally, the Court of Appeals crossed the line between judicial review and interference with separation of power principles.[FN14]

FN14. This Court has recognized: “Although Ohio does not have a constitutional provision expressly stating the concept of separation of powers, ‘this doctrine is implicitly embedded in the entire framework of those sections of the Ohio Constitution that define the substance and scope of the powers granted to the three branches of state government’ [cite omitted].” State ex rel Plain Dealer v. Cleveland, 75 Ohio St.3d 31, 37, 1996-Ohio-379; see, also, State v. Hochhauser, 76 Ohio St.3d 455, 1996-Ohio-374. While these cases typically deal with the constitutional grant of authority to the state legislature, i.e., Ohio Const. Art.II §1, the legislative powers of municipality also enjoy constitutional recognition at Art. XVIII §3 of the Ohio Constitution.

*12 Proposition of Law III:

Dogs commonly known as pit bulls possess unique and readily identifiable physical and behavioral traits, which are capable of recognition both by dog owners of ordinary intelligence and by enforcement personnel.

The Court of Appeals concluded that R.C. 955.11 (A)(4)(a)(iii) and T.M.C. 505.14(a) are unconstitutional because an owner might not think their dog looked like a pit bull. Because this might happen, the court concluded that an ordinary citizen would not understand he was breaking the law.

Importantly, Tellings never contested the dog warden's classification of his dogs as pit bulls. There is a question whether Tellings has standing to raise this vagueness issue. See, Singer v. Cincinnati, supra. at p. 4 (citing Parker v. Levy (1974), 417 U.S. 733.) Significantly, to note that a health inspector recognized Mr. Tellings' dogs as pit bulls, this dog warden had no difficulty in identifying Tellings dogs as pit bulls, and Tellings never contested this classification.

FN15. As indicated above, a motion to certify a conflict has been filed with the Court of Appeals.

More importantly, the finding of the Court of Appeals that the statutes and ordinance are void for vagueness is clearly in conflict with holdings from the Supreme Court of Ohio. See, State v. Anderson(1991), 57 Ohio St.3d 168; and State v. Ferguson (1991) 57 Ohio St.3d 176.

CONCLUSION

The trial court recognized that pit bulls have specific characteristics that make them different than other dogs. For instance, pit bulls were historically bred to “bite and hold” while *13 other dogs release after a bite. The trial court, like many other courts, recognized that both nationally and in the State of Ohio pit bull bites “seem to cause a disproportionate number of fatalities among the population”. Evidence at hearing showed that a large number of these dogs were present in urban, crowded, residential areas where small children are present and that the situation was dangerous. It is against this back drop that the Legislature of Ohio and the City Council of Toledo attempted to take action in furtherance of protecting the health and welfare of the citizens of Ohio and Toledo.

In regulating pit bulls, the state and local legislature was clearly within its constitutional right and authority and those legislative decisions should have been given deference by the Court of Appeals.

Clearly, regulations against pit bulls, specifically, do not create the type of due process problems addressed by this Court in Cowan. Nor in light of precedent from this Court, could the Court of Appeals correctly find that the state and local ordinances would be void for vagueness.

This case presents matters of great general and public interest in that, if allowed to stand, the affect of the Court of Appeals ruling will be to prevent state and local legislatures from addressing a recognized threat to its citizens. It deprives the state and local legislatures of the fundamental decision-making power guaranteed to them under the Constitution of Ohio. For similar reasons, this case involves substantial constitutional questions. In failing to properly apply the rational basis test and the precedence of this and other courts, the Court of Appeals improperly encroached on the constitutionally define powers of the state and local legislatures have been improperly usurped by the Court. At its core, this case involves serious issues regarding separation of powers.

*14 In conclusion, the trial court cited a well-reasoned passage from the University of Dayton Law Review which is applicable to this case:

“Although opponents of a total band on pit bulls argue that it is ‘unfair’ to take someone's dog away before the dog has done anything wrong, such a law is not inherently unconstitutional. Constitutionality is not determined by a ‘fairness' standard. Legislatures are permitted to act to protect the public from debilitating or possibly fatal attacks by pit bulls, even if it means taking steps that sweep more broadly in that which would be sufficient to accomplish this important goal. Arguably, some families own docile pit bulls who have never threatened anybody; possibly their violent instincts have been effectively deluded over succeeding generations. The undeniable fact remains, however, that a disproportionate number of pit bulls have been involved in very serious attacks. Clearly, a ban on ownership of pit bulls, whether under inclusive or over inclusive, bears a relation to the legitimate legislative goal of public safety.” University of Dayton Law Review, Vol. 13.2 (1988), pp. 298, 291.